Justice Ginsberg’s concerns are being realized in the efforts to insert Hobby Lobbyized provisions into state RFRAs. What is curious is that are engaging in an odd and easily refutable historical revisionism in claiming that the Hobby Lobbyized RFRAs was the intention all along—even though the federal RFRA was passed in 1993.

The turning point in the national controversy was probably the debacle on ABC, when Governor Pence repeatedly claimed that the Indiana bill was the same as the others, and refused to say whether or not he supported anti-LGBTQ discrimination, saying that the “Religious Freedom Restoration Act was signed into federal law by President Bill Clinton more than 20 years ago. … And after last year’s Hobby Lobby case, Indiana properly brought the same version that then state senator Barack Obama voted for in Illinois before our legislature”

The Indianapolis Star reported on April 2nd that Pence’s talking points did not square with the facts. The Indiana bill is not the same as the federal RFRA and most of the state RFRA’s—including Illinois—but the post-Hobby Lobby timing is telling. The shorthand for the bill around the legislature was “the Hobby Lobby bill.”

Whatever the future of the various RFRAs (current and future), the campaign for religious exemptions to civil liberties we take for granted will continue. Texas, which already has a RFRA, is considering a number of explicitly discriminatory bills that feature religious exemptions – including one that would allow state-funded adoption agencies to turn away same-sex couples based on “sincerely held” religious beliefs.

While the struggle over the definition of religious freedom is far from over, the battle lines are becoming clearer.

The fact is that the federal RFRA, and most of the past state RFRAs, apply only to government actions. The original purpose of the legislation was to restore individual religious liberty taken away by the Supreme Court in the case of Employment Division v Smith, which involved Native Americans being denied state benefits in Oregon because they had been fired for using peyote in religious ceremonies.

A later Court ruling limited the reach of the federal RFRA to the actions of the federal government only, hence the beginning of the state level RFRAs.

However, since the Hobby Lobby v. Burwell Supreme Court ruling in 2014, Christian Right agencies like Alliance Defending Freedom, The Becket Fund, the Mormon Church, and allies at the United States Catholic Conference of Bishops, have pushed state-level RFRAs that extend exemptions to corporations and individuals – allowing measures of discrimination in the face of religious claims that to provide services to LGBTQ people violates their consciences.

The Hobby Lobby case, for the first time, granted a private business religious standing. In that case, the chain of craft stores was allowed to claim a religious exemption from providing employees with healthcare insurance covering four kinds of contraceptives, because the company owners believe (medical science not withstanding) they are abortifacients.

Borrowing language from the federal RFRA, on which the original case filed by The Becket Fund for Religious Liberty was based, Justice Alito, writing for the majority, said the government’s requirement that Hobby Lobby provide this contraceptive coverage imposed a “substantial burden” on their religious liberty.

Justice Ginsburg, writing in dissent, was concerned by the potential sweeping implications of the decision, “The court’s expansive notion of corporate personhood invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faiths.”
The first of these Hobby Lobbyized RFRAs was passed in Arizona, but was ultimately vetoed by the governor. A similar bill was passed and signed into law in Mississippi.

Justice Ginsberg’s concerns are being realized in the efforts to insert Hobby Lobbyized provisions into state RFRAs. What is curious is that are engaging in an odd and easily refutable historical revisionism in claiming that the Hobby Lobbyized RFRAs was the intention all along—even though the federal RFRA was passed in 1993.

The turning point in the national controversy was probably the debacle on ABC, when Governor Pence repeatedly claimed that the Indiana bill was the same as the others, and refused to say whether or not he supported anti-LGBTQ discrimination, saying that the “Religious Freedom Restoration Act was signed into federal law by President Bill Clinton more than 20 years ago. … And after last year’s Hobby Lobby case, Indiana properly brought the same version that then state senator Barack Obama voted for in Illinois before our legislature”

The Indianapolis Star reported on April 2nd that Pence’s talking points did not square with the facts. The Indiana bill is not the same as the federal RFRA and most of the state RFRA’s—including Illinois—but the post-Hobby Lobby timing is telling. The shorthand for the bill around the legislature was “the Hobby Lobby bill.”

Whatever the future of the various RFRAs (current and future), the campaign for religious exemptions to civil liberties we take for granted will continue. Texas, which already has a RFRA, is considering a number of explicitly discriminatory bills that feature religious exemptions – including one that would allow state-funded adoption agencies to turn away same-sex couples based on “sincerely held” religious beliefs.
While the struggle over the definition of religious freedom is far from over, the battle lines are becoming clearer.

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